Naranjo v. Beard

Filing 19

ORDER adopting re 15 Report and Recommendation. The Court OVERRULES Petitioner's objections, (Doc. No. 18), ADOPTS the R&R in its entirety, (Doc. No. 15), DENIES Petitioner's petition for writ of habeas corpus, (Doc. No. 1), and DECLINES to issue a certificate of appealability. Signed by Judge Anthony J. Battaglia on 8/22/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 JOSE A. NARANJO, Case No.: 15-CV-2666-AJB-BGS Petitioner, 13 14 15 ORDER: v. SCOTT KERNAN, 16 (1) ADOPTING THE REPORT AND RECOMMENDATION, (Doc. No. 15); Respondent. (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (Doc. No. 1); AND 17 18 19 (3) DENYING CERTIFICATE OF APPEALABILITY 20 21 22 23 On November 27, 2015, Jose A. Naranjo (“Petitioner”) filed a petition for writ of 24 habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner asserts 25 his Fourteenth Amendment right to due process was violated when (1) the trial court denied 26 his motion to withdraw from a guilty plea; and (2) refused to grant him a continuance to 27 fully contemplate the decision to plead guilty. (Id. at 1–2.) On March 2, 2016, Respondent 28 filed a response to the Petition. (Doc. No. 10.) Petitioner filed a traverse on April 7, 2016. 1 15-CV-2666-AJB-BGS 1 (Doc. No. 14.) 2 Magistrate Judge Skomal issued a report and recommendation (“R&R”) 3 recommending the Petition be denied on both claims. (Doc. No. 15.) On May 11, 2017, 4 Petitioner filed objections to the R&R. (Doc. No. 18.) Respondent did not reply. For the 5 reasons outlined below, the Court ADOPTS the R&R and DENIES the Petition. FACTUAL BACKGROUND 6 7 The Court gives deference to state court findings of fact and presumes them to be 8 correct; Petitioner may rebut this presumption, but only by clear and convincing evidence. 9 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35–36 (1992) (holding that 10 findings of historical fact, including inferences properly drawn therefrom, are entitled to 11 statutory presumption of correctness). The following facts are taken from the California 12 Court of Appeal opinion: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Naranjo dated the victim for about 10 years. On the evening of the day he ended their relationship, she went to a nightclub, which upset him. He drove to her home the next evening and she came outside to talk to him. She got into his truck and he started hitting her in the face. She tried to get out of the truck and escape, but he pushed her back inside and resumed hitting her. He continued hitting her as he drove her to a carpentry shop about six minutes away from her home. When they arrived at the shop, he insulted her and threatened to kill her. She removed her shoes, ran away, and yelled for help. He caught her and they fell to the ground. He covered her mouth and nose with his hand and told her to stop yelling. He took her back to the shop. As he was trying to open the shop door, she ran away again and tried to dial 911 on her phone. He caught her by her hair and took the phone from her. She passed out. He lifted her and carried her toward the shop. She regained consciousness along the way. He then put her down and they walked into the shop, where, after securing the door, he told her he was going to chop her into little pieces using the table saw. He started moving toward the table saw and she begged him not to hurt her. He pulled her up and took her to a stool. He asked her why she had disrespected him by going to the nightclub. He bent her over the stool, pulled her pants down, put his penis into her vagina and started moving. She cried and told him she did not want him to do what he was doing. He told her she had asked for it by going to the nightclub. 2 15-CV-2666-AJB-BGS 1 He then took her off the stool, put her on the floor, and began moving his penis in and out of her rectum. She told him he was hurting her and she could not breathe because her nose was bleeding, but he did not stop. 2 3 After he ejaculated, he had her get dressed and get back into his truck. He ran an errand and then took her home. She pretended everything was fine and kissed him goodbye. When she got to her door, she called the police. Her injuries included bleeding, a fractured nose, bites on her back, and injuries to her right thigh. 4 5 6 7 (Doc. No. 11-13 at 2–3.) PROCEDURAL BACKGROUND1 8 9 I. Initial Proceedings Before the State Courts 10 On February 11, 2009, Petitioner pled guilty to forcible rape (Cal. Penal Code § 11 261(a)(2)), forcible sodomy (Cal. Penal Code § 286(c)(2)), assault likely to produce great 12 bodily injury (Cal. Penal Code § 245(a)(1)) enhanced under California Penal Code § 13 12022.7(a) based on Petitioner’s admission that he personally inflicted great bodily injury, 14 and making criminal threats (Cal. Penal Code § 422). (Doc. No. 11-1 at 24–26; Doc. No. 15 11-3 at 3–4.) In exchange for his guilty plea to these charges, additional charges that might 16 have resulted in a sentence of 25 years to life were dismissed, and Petitioner received a 17 stipulated sentence of 18 years and 8 months. (Doc. No. 11-3 at 9–10; Doc. No. 11-4 at 18 20–21.) 19 On March 12, 2009, Petitioner filed a pro se motion to withdraw his guilty plea, 20 claiming he entered his plea out of fear and under pressure from counsel and wanted an 21 attorney that would dedicate more time to his case and get him a more equitable plea 22 agreement. (Doc. No. 11-1 at 28–31.) The trial court appointed new counsel and his new 23 counsel filed a motion to withdraw his guilty plea. (Id. at 32–34.) 24 The trial court held a hearing on the motion on June 3, 2009, heard testimony from 25 26 27 28 Judge Skomal succinctly and accurately summarizes this case’s procedural posture; as such, the Court largely incorporates the R&R’s procedural background section into this order, though the Court also reviewed the lodgments. 1 3 15-CV-2666-AJB-BGS 1 Petitioner and his prior counsel, and denied his motion. (Doc. No. 11-4 at 1–19.) Petitioner 2 was sentenced under the terms of the plea agreement to 18 years and 8 months. (Id. at 20– 3 21.) Petitioner did not directly appeal the denial of his motion to withdraw his guilty plea. 4 On June 3, 2010, Petitioner filed a habeas corpus petition in San Diego Superior 5 Court, arguing he was unduly influenced by his counsel to plead guilty, he was not aware 6 of the charges he was pleading to, he should have been allowed to withdraw his plea, and 7 his counsel should have filed an appeal of the denial of the motion to withdraw his plea. 8 (Case No. 11-CV-1487, Lodgment 4.) It was denied on July 20, 2010. (Case No. 11-CV- 9 1487, Lodgment 5.) Petitioner filed a petition with the California Court of Appeal on 10 September 16, 2010. (Case No. 11-CV-1487, Lodgment 6.) It was denied in a reasoned 11 decision. (Case No. 11-CV-1487, Lodgment 7.) Petitioner filed a petition with the 12 California Supreme Court. (Case No. 11-CV-1487, Lodgment 8.) It was summarily denied. 13 (Case No. 11-CV-1487, Lodgment 9.) 14 II. Prior Federal Habeas Proceedings 15 On July 1, 2011, Petitioner filed his first federal habeas petition raising four claims: 16 (1) he was unduly influenced by his counsel to plead guilty; (2) he did not understand the 17 charges to which he was pleading guilty; (3) the trial court erred in denying his motion to 18 withdraw his guilty plea; and (4) he received ineffective assistance of counsel because his 19 attorney failed to file a notice of appeal and failed to consult with him about filing a notice 20 of appeal. (Case No. 11-CV-1487, Doc. No. 1.) The district court denied habeas relief on 21 the first three claims, but allowed submission of all relevant evidence in support of claim 22 four. (Case No. 11-CV-1487, Doc. No. 20 at 4–15.) Following the submission of additional 23 evidence, the district court found Petitioner received ineffective assistance of counsel based 24 on counsel’s failure to consult with Petitioner about filing an appeal or filing an appeal on 25 his behalf on the denial of his motion to withdraw his plea. (Case No. 11-CV-1487, Doc. 26 No. 27.) 27 On this basis, the district court granted habeas relief and ordered the state court to 28 vacate the June 3, 2009, judgment and reinstate it to allow Petitioner to file a timely appeal. 4 15-CV-2666-AJB-BGS 1 (Id. at 16.) The district court later modified its order to state that “The Petition for Writ of 2 Habeas Corpus is GRANTED as to claim four. Respondent shall release Petitioner from 3 custody on June 9, 2013 unless, prior to that date, the Superior Court of California, County 4 of San Diego has vacated its June 3, 2009 order and judgment and then reinstated that order 5 and judgment, thereby allowing Petitioner to initiate the appeal process from the reinstated 6 judgment by seeking a certificate of probable cause.” (Case No. 11-CV-1487, Doc. No. 29 7 at 3.) The district court also granted Petitioner a certificate of appealability as to claims 8 one, two, and three. (Id. at 3–4.) The initial deadline for the state court to comply was 9 extended a number of times by the district court, and then Respondent filed an appeal with 10 the Ninth Circuit and sought and obtained a 30-day stay of the district court’s order on July 11 17, 2013. (Case No. 11-CV-1487, Doc. No. 52.) 12 III. State Court Proceedings Following First Habeas Petition 13 On July 17, 2013, a hearing was held before the state trial court to address 14 compliance with the district court order. (Doc. No. 11-5 at 3–6.) The trial court noted that 15 upon reviewing the situation, he had ordered counsel appointed for Petitioner, who was 16 present in court. (Id. at 3.) It appears the trial court determined, after consultation with 17 counsel for Petitioner, the attorney general’s office, and the district attorney’s office, that 18 the only way the court could obtain jurisdiction to comply with the district court’s directive 19 to vacate and reinstate the judgment to allow Petitioner to appeal was for Petitioner to file 20 a state habeas petition seeking that relief. (Id. at 3–4.) 21 After an additional hearing on July 18, 2013, before the state trial court, Petitioner 22 filed a state habeas petition on July 30, 2013, seeking the relief granted by the district court. 23 (See Doc. No. 11-7 at 3.) Petitioner then attempted to rescind it by letter on July 31, 2013, 24 but then confirmed on the record at an August 5, 2013, hearing that he wanted it filed. (Id.) 25 The trial court granted the state habeas petition during that hearing, finding Petitioner 26 received ineffective assistance of counsel based on counsel’s failure to consult with 27 Petitioner about an appeal or file an appeal of the denial of the request to withdraw his plea. 28 (Id. at 7.) The trial court vacated the June 3, 2009, judgment, reinstated it, and imposed the 5 15-CV-2666-AJB-BGS 1 same sentence. (Id. at 7–8.) 2 On appeal, Petitioner again challenged the denial of his motion to withdraw his plea 3 as well as claiming the trial court judge became excessively involved in the state habeas 4 proceedings and should have granted Petitioner a continuance. (Doc. No. 11-8.) The Court 5 of Appeal affirmed the judgment in a reasoned decision. (Doc. No. 11-13.) Petitioner filed 6 a petition for review with the California Supreme Court. (Doc. No. 11-14.) It was 7 summarily denied on July 8, 2015. (Doc. No. 11-15.) 8 IV. Current Federal Petition 9 On November 27, 2015, Petitioner filed the instant Petition in which he alleges (1) 10 a due process violation for the denial of his motion to withdraw from the guilty plea; and 11 (2) a due process violation for the trial court’s denial of Petitioner’s request for a 12 continuance and the trial court’s involvement following the district court’s grant of habeas 13 relief. (Doc. No. 1 at 4–15.) On March 2, 2016, Respondent filed an answer to the Petition, 14 arguing that the state courts reasonably concluded Petitioner’s claims are meritless, and he 15 is not entitled to an evidentiary hearing. (See Doc. No. 10 at 3.) 16 On April 4, 2017, Judge Skomal issued an R&R, in which he made the following 17 findings: (1) Petitioner’s first claim is meritless because even when undertaking a de novo 18 review of the record, Petitioner’s plea was knowing and voluntary, and counsel was not 19 ineffective in advising him on the plea deal; and (2) Petitioner’s second claim is meritless 20 because he was not prejudiced by not receiving a trial after the district court granted him 21 limited habeas relief, and the trial judge’s conduct did not deprive Petitioner of due process; 22 and (3) there is no reason to conduct an evidentiary hearing. (Doc. No. 15.) 23 On May 11, 2017, Petitioner filed three objections to the R&R: (1) state law 24 questions are cognizable under § 2254; (2) his plea was not knowing and voluntary, and he 25 therefore should have been permitted to withdraw it; and (3) he was entitled to a trial, which 26 the trial court prevented. (Doc. No. 18.) Respondent did not reply to Petitioner’s objections. 27 LEGAL STANDARD 28 The Petition is governed by the Antiterrorism and Effective Death Penalty Act 6 15-CV-2666-AJB-BGS 1 (“AEDPA”), applying a “‘highly deferential standard for evaluating state-court rulings,’ 2 which demands that state-court decisions be given the benefit of the doubt.” Woodford v. 3 Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 4 333 & n.7 (1997)). Federal habeas relief may be granted if the state court (1) applied a 5 rule different from the governing law provided by the United States Supreme Court; or 6 (2) correctly identified the governing legal principle, but unreasonably applied it to the 7 facts of the case. Bell v. Cone, 535 U.S. 685, 694 (2002). 8 The duties of the district court with respect to a magistrate judge’s report and 9 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 10 28 U.S.C. § 636(b)(1). The district court must “make a de novo determination of those 11 portions of the report . . . to which objection is made” and “may accept, reject, or modify, 12 in whole or in part, the findings or recommendations made by the magistrate judge.” 28 13 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); 14 United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). 15 As to portions of the report to which no objection is made, the Court may assume 16 the correctness of the magistrate judge’s findings of fact and decide the motion on the 17 applicable law. Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson 18 v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the 19 Ninth Circuit has held that a failure to file objections only relieves the trial court of its 20 burden to give de novo review to factual findings; conclusions of law must still be 21 reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007). 22 DISCUSSION 23 “Where there has been one reasoned state judgment rejecting a federal claim, later 24 unexplained orders upholding that judgment or rejecting the same claim rest upon the same 25 ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Here, the California Court of 26 Appeal affirmed the judgment of the trial court in a reasoned decision, rejecting Petitioner’s 27 challenges to the denial of his motion to withdraw his plea and the trial court’s conduct of 28 the post-habeas proceedings. (Doc. No. 11-13.) The Supreme Court summarily denied 7 15-CV-2666-AJB-BGS 1 Petitioner’s petition for review, (Doc. No. 11-15); thus, the Court “looks through” the 2 Supreme Court’s denial to review the appellate court’s decision, Ylst, 501 U.S. at 806. 3 I. Due Process Violation Regarding Voluntariness of Guilty Plea 4 In his first claim, Petitioner argued that he was deprived of due process because his 5 guilty plea was entered under duress; thus, the trial court should have permitted Petitioner 6 to withdraw it. (Doc. No. 1 at 4–7.) Petitioner asserted he “feared that his attorney was not 7 prepared to defend him at trial” and was thus pressured into taking the plea. (Id. at 6.) In 8 the R&R, Judge Skomal found this claim had already been evaluated and rejected by the 9 state appellate court. (See Doc. No. 15 at 11–12, 14; see also Doc. No. 11-13 at 6–8.) 10 Therefore, his only task was to determine whether the state court’s denial of the claim was 11 unreasonable. Harrington v. Richter, 562 U.S. 86, 100–01 (2011). Pursuant to 28 U.S.C. § 12 2254, federal habeas courts are not required to address whether the plea was knowing and 13 voluntary, but rather whether there is any reasonable argument to support the state court’s 14 conclusion that the plea was knowing and voluntary. See id. at 101–02. 15 The California Court of Appeal found substantial evidence in the record existed to 16 conclude that Petitioner’s “guilty plea was not the result of any factor overcoming his 17 exercise of free judgment,” including the colloquy that took place between the trial judge 18 and Petitioner at the time he entered the plea; the reasonableness of the decision to accept 19 a determinate (albeit long) sentence as opposed to facing the possibility of never being 20 released from prison if he went to trial and lost; and Petitioner representing he wanted to 21 withdraw his plea, not because he believed the charges against him were defensible, but 22 because he wanted a “better deal.” (Doc. No. 11-13 at 8–9.) Judge Skomal agreed, finding 23 that the state courts’ conclusions that Petitioner’s plea was knowing and voluntary were 24 not contrary to, or an unreasonable application of, established federal law. (Doc. No. 15 at 25 15.) 26 In response to Judge Skomal’s recommended denial of relief for the first claim, 27 Petitioner asserts two objections. First, Petitioner argues a due process violation based upon 28 California Penal Code section 1018 is cognizable under § 2254. (Doc. No. 18 at 2.) Second, 8 15-CV-2666-AJB-BGS 1 Petitioner emphasizes that his attorney and the prosecutor “grossly misstated” the potential 2 sentence he faced if he went to trial. (Id. at 3.) Because the resolution of Petitioner’s first 3 objection depends on resolution of the second, the Court will address the second objection 4 first. Voluntariness of Petitioner’s Guilty Plea 5 A. 6 “Due process . . . require[s] that a defendant’s guilty plea be voluntary and 7 intelligent.” United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (per 8 curiam) (quoting Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988)). A defendant who 9 pleads guilty based upon the advice of counsel does not justify setting aside an otherwise 10 valid guilty plea. United States v. Broce, 488 U.S. 563, 571–72 (1989). When a defendant 11 wishes to attack a guilty plea based upon his attorney’s assistance, relief may be provided 12 only if a court determines that the advice received was outside the scope of advice provided 13 by competent attorneys handling criminal cases. Tollett v. Henderson, 411 U.S. 258, 266– 14 67 (1973) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). 15 Whether a plea is valid turns on “whether the plea represents a voluntary and 16 intelligent choice among the alternative courses of action open to the defendant.” Hill v. 17 Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 18 (1970)). When determining whether a plea was entered voluntarily and intelligently, the 19 record must be reviewed to disclose whether the defendant understood the plea and its 20 effects. See Brady v. United States, 397 U.S. 742, 747–49 & n.4 (1970). Of particular 21 importance is that the defendant enter a guilty plea with “sufficient awareness of the 22 relevant circumstances and likely consequences.” Id. at 748. A plea is coerced when the 23 defendant was induced by promises or threats that would render the plea inherently 24 involuntary. Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). 25 Petitioner asserts his plea was coerced because his defense attorney and the 26 prosecutor “grossly misstated” the sentence he faced if he went to trial. (Doc. No. 18 at 3.) 27 Specifically, Petitioner states he was threatened with a sentence of 64 years-to-life, a 28 sentence which he could not have received because he was “not a[] habitual offender under 9 15-CV-2666-AJB-BGS 1 California Law,” and his sentence could not be enhanced under California Penal Code 2 section 667.5. (Id.) 3 Having reviewed the record de novo, the Court finds that Petitioner’s contention is 4 not borne out by the record. The first time it was indicated to Petitioner that he could face 5 a determinate term of 64 years-to-life was on July 18, 2013, at a status hearing in state court 6 after the district court granted Petitioner relief on his first habeas petition. (Doc. No. 11-6 7 at 2, 8.) Petitioner pled guilty on February 11, 2009. (Doc. No. 11-1 at 24–26.) Clearly, a 8 representation made four years after he entered his guilty plea could not have coerced said 9 plea. What was represented to Petitioner at the time he entered his plea was that he could 10 face a sentence of 25 years-to-life. (Doc. No. 11-4 at 12.) Accordingly, the representation 11 that Petitioner could face 64 years-to-life could not have coerced him into pleading guilty. 12 See Gray v. Yates, No. C 06-0535 MJJ (PR), 2007 WL 3146942, at *5–6 (N.D. Cal. Oct. 13 25, 2007) (“Petitioner’s plea was not coerced by threats of a life sentence because the only 14 reference the trial court made to a life term occurred at the sentencing hearing, over a month 15 after Petitioner entered his plea.”). 16 When reviewing the information Petitioner had at the time he entered his guilty plea, 17 the Court finds the trial court’s determination that Petitioner voluntarily and intelligently 18 entered his guilty plea was not contrary to, or an objectively unreasonable application of, 19 clearly established federal law. On the change-of-plea form, Petitioner acknowledged the 20 voluntariness of his plea by individually initialing the statements, “I have not been induced 21 to enter this plea by any promise or representation of any kind,” and “I am entering my 22 plea freely and voluntarily, without fear or threat to me or anyone closely related to me.” 23 (Doc. No. 11-1 at 24.) Petitioner also acknowledged the constitutional rights he was giving 24 up and the sentence he would receive by initialing each item. (Id. at 24–26.) 25 At the change-of-plea hearing, Petitioner confirmed the voluntariness of his plea. 26 The trial judge asked Petitioner whether anyone had threatened him or anyone he cared 27 about to force him to change his plea, and whether anyone forced him to change his plea. 28 (Doc. No. 11-3 at 4.) Petitioner answered both questions negatively. (Id.) After Petitioner 10 15-CV-2666-AJB-BGS 1 acknowledged understanding the rights he was giving up and admitting his guilt to each of 2 the counts, the trial judge found that Petitioner “entered a knowing, voluntary and 3 intelligent waiver of his constitutional rights.” (Id. at 9.) The trial judge further found 4 Petitioner “underst[oo]d the nature of these charges and the consequences of the plea.” (Id. 5 at 9–10.) Petitioner’s “[s]olemn declarations in open court carry a strong presumption of 6 verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Furthermore, the trial judge’s 7 finding that the plea was knowing, voluntary, and intelligent “constitute[s] a formidable 8 barrier in any subsequent collateral proceedings.” Id. Based on the record as a whole, the 9 Court cannot say that the trial court was objectively unreasonable in its application of 10 established federal law. 11 Nor is the Court convinced that Petitioner’s defense counsel provided Petitioner with 12 advice that fell outside the scope of advice provided by competent attorneys handling 13 criminal cases. As the appellate court stated, defense counsel conveyed the difficult choice 14 facing Petitioner, namely, a long determinate sentence with the promise of one day being 15 released from prison, or an indeterminate sentence with no assurance of ever being 16 released. (Doc. No. 11-13 at 8–9.) This advice did not fall outside the scope of advice 17 provided by competent attorneys.2 The appellate court’s determination was therefore not 18 contrary to or an unreasonable application of established federal law. The Court thus 19 OVERRULES Petitioner’s second objection. 20 B. 21 Federal habeas writs may not issue on the basis of a perceived error of a state law. 22 Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas Violation of State Law 23 24 25 26 27 28 2 Nor does the pressure that is inherently entailed in making the choice between a long determinate sentence and potential life imprisonment render Petitioner’s plea involuntary. See Brady, 397 U.S. at 749–50; see also id. at 758 (“Although Brady’s plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful.”). 11 15-CV-2666-AJB-BGS 1 court to reexamine state-court determinations on state-law questions.”) A petitioner cannot 2 transform a state law issue into a federal one by labeling it a due process or equal protection 3 violation. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (Petitioner “may not 4 [] transform a state-law issue into a federal one merely by asserting a violation of due 5 process.”). 6 In his Petition, Petitioner asserts that the trial court violated California Penal Code 7 section 1018 by denying Petitioner’s request to withdraw his guilty plea. (See Doc. No. 1 8 at 5–6.) A violation of state law that does not also amount to a violation of a constitutional 9 right, however, cannot serve as the basis for federal habeas relief. See Little v. Crawford, 10 449 F.3d 1075, 1083 n.6 (9th Cir. 2006) (stating federal courts “cannot treat a mere error 11 of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision 12 by a state court on state law would come here as a federal constitutional question”). 13 The California statute Petitioner asserts was violated states, in pertinent part, “On 14 application of the defendant at any time before judgment . . . , the court may, . . . for a good 15 cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” 16 Cal. Penal Code § 1018. In California, “[w]ithdrawal of a guilty plea is left to the sound 17 discretion of the trial court. A denial of the motion will not be disturbed on appeal absent 18 a showing the court has abused its discretion.” People v. Huricks 32 Cal. App. 4th 1201, 19 1208 (1995) (quoting People v. Nance, 1 Cal. App. 4th 1453, 1456 (1991)). Nothing in this 20 standard “remotely suggests that a state court judge’s exercise of such discretion would 21 give rise to a federal due process violation. Accordingly, this claim does not warrant federal 22 habeas relief.” Wagner v. Diaz, No. 1:12-cv-01782-LJO-JL, 2015 WL 3563026, at *14 23 (E.D. Cal. May 28, 2015). In light of the Court’s conclusion in the preceding section, the 24 Court finds any purported violation of section 1018 cannot serve as the basis for federal 25 habeas relief. See, e.g., Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (finding 26 habeas petitioner’s allegation that state court misapplied state law or “departed from its 27 earlier decisions” does not provide basis for habeas relief); Williams v. Borg, 139 F.3d 737, 28 740 (9th Cir. 1998) (stating federal habeas relief is available “only for constitutional 12 15-CV-2666-AJB-BGS 1 violation, not for abuse of discretion”). Accordingly, the Court OVERRULES Petitioner’s 2 first objection. 3 II. Due Process Violation Based on Judicial Involvement 4 In the Petition, Petitioner contends the trial court violated his rights to due process 5 and a fair trial by excessively inserting itself into the proceedings and pressuring him into 6 filing a state habeas petition. (Doc. No. 1 at 10–15.) This is the same argument the 7 California appellate court considered and rejected. (Doc. No. 11-13 at 9–14.) Accordingly, 8 Judge Skomal’s only task on the R&R was to determine whether the state court’s denial of 9 the claim was contrary to or an unreasonable application of established federal law. 10 Harrington, 562 U.S. at 100–01. 11 In the R&R, Judge Skomal determined that Petitioner is not entitled to relief because 12 he has not established any prejudice, the proceedings before the trial court following the 13 grant of habeas relief were neither unfair nor in violation of any fundamental conception 14 of justice, and the trial court’s insistence on expeditiousness in the face of the district 15 court’s order was not arbitrary. (Doc. No. 15 at 22–28.) Petitioner objects, arguing that he 16 “was entitled to have his day in court (i.e. a trial).” (Doc. No. 18 at 4.) 17 Having reviewed the record de novo, the Court agrees with Judge Skomal that 18 Petitioner is not entitled to habeas relief because he cannot show actual prejudice. See 19 Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (stating habeas relief is available only if 20 prejudice is established). Petitioner’s position that he was entitled to having the judgment 21 vacated and proceeding to trial is fundamentally flawed because he was not afforded that 22 relief by the district court. Rather, the district court granted him the limited relief of 23 ordering the state court to “vacate its June 3, 2009 order and judgment and then reinstate[] 24 that order and judgment, thereby allowing Petitioner to initiate the appeal process from the 25 reinstated judgment by seeking a certificate of probable cause” based on defense counsel’s 26 failure to consult with Petitioner about an appeal after the trial court denied his motion to 27 withdraw his plea. (Case No. 11-CV-1487, Doc. No. 27 at 16.) The district court expressly 28 found that Petitioner “failed to demonstrate that the California Court of Appeal’s decision, 13 15-CV-2666-AJB-BGS 1 finding that Petitioner voluntarily and knowingly entered his plea, was contrary to, or an 2 unreasonable application of, Supreme Court precedent.” (Case No. 11-CV-1487, Doc. No. 3 20 at 7.) The district court also found “the decision of the state court to deny Petitioner’s 4 motion to withdraw his guilty plea was not contrary to, or an unreasonable application of, 5 Supreme Court precedent.” (Id. at 9.) 6 In light of the foregoing, it is abundantly clear that Petitioner got exactly what he 7 was afforded under the district court’s order granting him federal habeas relief: the 8 opportunity to appeal the denial of the motion to withdraw his guilty plea. The district court 9 expressly denied him habeas relief relating to the entry of the guilty plea and denial of the 10 motion to withdraw the plea. Petitioner cannot now object on the basis of being denied “his 11 day in court.” (Doc. No. 18 at 4.) There being no prejudice to Petitioner, there can be no 12 habeas relief. On this basis, the Court OVERRULES Petitioner’s third objection. 13 III. Certificate of Appealability 14 When a district court enters a final order adverse to the applicant in a habeas corpus 15 proceeding, it must either issue or deny a certificate of appealability, which is required to 16 appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate 17 of appealability is appropriate only where the petitioner makes “a substantial showing of 18 the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) 19 (quoting 28 U.S.C. § 2253(c)(2)). Under this standard, the petitioner must demonstrate that 20 reasonable jurists could debate whether the petition should have been resolved in a different 21 manner or that the issues presented were adequate to deserve encouragement to proceed 22 further. Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Here, the Court finds that 23 reasonable jurists could not debate the Court’s conclusion and therefore DECLINES to 24 issue a certificate of appealability. 25 // 26 // 27 // 28 // 14 15-CV-2666-AJB-BGS 1 CONCLUSION 2 Based on the foregoing, the Court OVERRULES Petitioner’s objections, (Doc. No. 3 18), ADOPTS the R&R in its entirety, (Doc. No. 15), DENIES Petitioner’s petition for 4 writ of habeas corpus, (Doc. No. 1), and DECLINES to issue a certificate of appealability. 5 6 7 IT IS SO ORDERED. Dated: August 22, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 15-CV-2666-AJB-BGS

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